Session 3: Ethics: Dos and Don ts for Those Administering Plans! Ilene H. Ferenczy, J.D., CPC, APA Managing Partner Ferenczy Benefits Law Center

Transcription

1 Session 3: Ethics: Dos and Don ts for Those Administering Plans! Ilene H. Ferenczy, J.D., CPC, APA Managing Partner Ferenczy Benefits Law Center

2 Thank You to Our Sponsors!

3 Introduction What are ethics? Source of ethics Other considerations Case studies Agenda 3

4 Ethics What Are They? According to the dictionary: the discipline dealing with what is good and bad and with moral duty and obligation; a set of moral principles; a theory or system of moral values 4

5 Types of Ethics Ethics defined by a professional organization (like NIPA, ASPPA, CEBS, AICPA, FINRA, or the ABA) may represent what you need to do to keep your designation Ethics defined by a governmental department may represent what you need to do to keep your license to practice before such department (e.g., Circular 230, SEC) and may also involve criminal sanctions Proper standard of care in your industry to define what is not malpractice or negligence 5

6 Key Practice Issue The difference between the client s expectations and your performance may be the basis of the client s belief that you have committed malpractice How will the client define that expectation? Impressions of what a TPA does? Impressions of what his/her TPA does? General ideas about what is involved in retirement plan administration? What his/her friends with plans have said? Legal documentation, such as the TPA s service agreement? 6

7 ERPA Ethical Obligations 7

8 ERPA Ethics Circular 230 contains ethical rules to which ERPAs, as well as other tax professionals, are subject 8

9 Circular 230 Rules for Working with the IRS

10 Circular 230, 10.20: Information to the IRS and 10.23: Promptness If you are asked to provide information to the IRS, you must provide it promptly and not interfere with the IRS s efforts to get that information You must not unreasonably delay the prompt disposition of any matter with the IRS Exception: you believe in good faith and on reasonable grounds that the information is subject to privilege 10

11 Practice Tip The IRS is generally rejecting filings if the reviewer requests information and the practitioner does not respond in a timely manner unless the practitioner gets an extension of time before the original deadline runs out

12 Circular 230, 10.34: Standards for Returns and Documents, Affidavits, Papers You may not advise a client to take a position on a document submitted to the IRS that: Is frivolous Is meant to impede or delay the administration of the tax laws Demonstrates an intentional disregard of a rule or regulation unless there is a good faith challenge to the rule or regulation Or advise a client to submit a return that: Lacks a reasonable basis Takes an unreasonable position Willfully understates tax or disregards tax rules and regulations 12

13 Circular 230, 10.34: Standards for Returns, Docs, Affidavits, Etc. (Continued) You must: Advise the client of any penalties that are likely to apply with respect to a position taken on a tax return or document submission; and Inform the client of any opportunity to avoid such penalty by disclosure and the requirements of disclosure 13

14 What is the difference between: Question An aggressive but permitted position; and A position that lacks a reasonable basis? Is the practitioner s knowledge that the position is unreasonable needed? Example: TPA has a great idea about how to design a retirement plan. He looks through the Code and regulations and can find nothing that says his idea is impermissible. However, there have been five cases litigated in the last ten years that are roughly similar to the administrator s idea, and all have been decided against the taxpayer. The administrator had no idea of these cases after all, he s not a lawyer.

15 Circular 230, 10.34: Standards for Returns, Docs, Affidavits, Etc. (Continued) You may: Rely in good faith on information provided by the client You may not: Ignore implications of information furnished, and must make reasonable inquiries if the information appears to be incorrect, inconsistent with facts, or incomplete 15

16 Circular 230 Rules for Working with Your Clients

17 New 10.35: Competence A practitioner must possess the necessary competence to engage in practice before the Internal Revenue Service Competent practice requires the appropriate level of knowledge, skill, thoroughness, and preparation necessary for the matter for which the practitioner is engaged A practitioner may become competent for the matter for which the practitioner has been engaged through various methods, such as consulting with experts in the relevant area or studying the relevant law

18 Circular 230, 10.29: Conflicts of Interest Cannot accept representation of a client if there is a conflict of interest: Representation will be directly adverse to another client; or Significant risk that representation to one or more clients will be materially limited by responsibilities to other clients, third parties, or practitioner s own interests Exception to prohibition: You reasonably believe you can provide competent and diligent representation, notwithstanding the conflict Representation not prohibited by law Each affected client is advised of and waives the conflict in writing

19 Circular 230, 10.30: Solicitation No false, fraudulent, coercive statements or claims Cannot use the term certified or imply that you are an IRS employee If make uninvited solicitation, must clearly identify as such and identify source of information used in choosing the recipient Fee information cannot be misleading 19

20 Circular 230, 10.21: Knowledge of Client s Omission If you know that the client has omitted material information or made an error in any filing with the IRS, must advise client: That the omission or error was made; and The potential consequences of the omission or error 20

21 Circular 230, 10.22: Due Diligence You must exercise due diligence in your practice You can rely on the work product of another person if you exercised reasonable due diligence in engaging, supervising, training, or evaluating the other person, taking into account your relationship with the other person 21

22 Circular 230, 10.33: Best Practices You should provide clients with the highest-quality representation by adhering to best practices in providing advice and preparing IRS submissions You must communicate clearly with clients regarding the terms of your engagement 22

23 Circular 230, 10.33: Best Practices You should: Establish facts (Continued) Determine which facts are relevant Evaluate the reasonableness of any assumptions or representations Relate the applicable law to the facts Arrive at a conclusion Advise clients regarding the import of conclusions reached Act fairly and with integrity vis-à-vis the IRS 23

24 Circular 230, 10.28: Return of Client Records Must return all records of client necessary for compliance with tax obligations Effect of fee dispute Generally does not relieve obligation to return records, but If state law permits retention of records in case of fee dispute, need only return records that must be attached to the taxpayer s return 24

25 Circular 230, 10.28: Return of Client Records (Continued) Client s records include: Provided to practitioner in the course of representation that preexisted practitioner s work (i.e., prior records) Materials prepared by client or third party Returns, claims for refund, schedule, affidavit, appraisal, etc., prepared by practitioner that were already presented to client (but not those that are pending the client s payment of fees with respect to those documents) 25

26 Circular 230 Rules for Running a Practice

27 Circular 230, 10.33: Remember the Best Practices from the Last Section? Owners/managers should take reasonable steps to ensure that the firm s procedures for all in the firm are consistent with best practices 27

28 Circular 230, Office Procedures If you oversee a firm s practice, you must take reasonable steps to ensure that the firm has adequate procedures in effect for all members, associates, and employees for purposes of complying with Circular 230 IRS can discipline you if: You don t take reasonable steps to establish procedures and see that they are followed (and correct violations) and One or more individuals who are members of, associated with, or employed by, the firm are, or have, engaged in a pattern or practice, in connection with their practice with the firm, of failing to comply with Circular

29 Circular 230, 10.37: Written Advice In giving written advice, a practitioner must: Base the advice on reasonable factual and legal assumptions (must make reasonable efforts to ascertain facts) Reasonably consider all relevant facts and circumstances that the practitioner knows or reasonably should know Not rely upon any representations, statements, findings, or agreements by the taxpayer or other representative if reliance is unreasonable Relate applicable law and authorities to facts, and May not, in evaluating a Federal tax matter, take into account the possibility that a tax return will not be audited or that a matter will not be raised on audit 29

30 Circular 230, 10.37: Written Advice (Continued) What is a Federal tax matter? Any matter concerning the application or interpretation of any revenue provision in the Internal Revenue Code, regulation, or IRS guidance Any provision of law impacting a person s tax/return filing obligations Any other law or regulation administered by the IRS 30

31 Circular 230, 10.37: Written Advice (Continued) Definition of reasonable reliance Reliance on representations, statements, findings, or agreements is unreasonable if the practitioner knows or reasonably should know that one or more representations or assumptions on which any representation is based are incorrect, incomplete, or inconsistent 31

32 Circular 230, 10.37: Written Advice (Continued) When can you reasonably rely on another? A practitioner may rely on the advice of another person only if the advice is reasonable, and the reliance is in good faith considering all the facts and circumstances 32

33 Circular 230, 10.37: Written Advice (Continued) When can you reasonably rely on another? Reliance is not reasonable when: The practitioner knows or reasonably should know that the opinion of the other person should not be relied on The practitioner knows or reasonably should know that the other person is not competent or lacks the necessary qualifications to provide the advice The practitioner knows or reasonably should know that the other person has a conflict of interest in violation of the rules described in this part 33

34 Circular 230, 10.37: Written Advice (Continued) What is written advice? Includes electronic advice Doesn t include comment letters to IRS Doesn t include continuing education materials Unless marketing transactions or products Putting contact information in materials isn t marketing 34

35 Circular 230, 10.37: Written Advice What about disclaimers? (Continued) A disclaimer doesn t mean that you are not liable for a violation of May want to have a disclaimer to indicate scope of opinion 35

36 Circular 230, 10.37: Written Advice (Continued) Sample new disclaimer: PLEASE NOTE: Any tax and legal advice provided in this correspondence is for the exclusive use of the person to whom it is directed and is dependent on the facts and circumstances provided to us by such person (regardless of whether such facts and circumstances are discussed in this correspondence). The use of this information for any other situation and by any other individual, regardless of how this correspondence was provided to the other individual, may be inappropriate. Furthermore, if the facts and circumstances communicated to us are not accurate and complete, please contact us immediately, as our advice may change. Please also contact our office with any questions you may have. 36

37 Other Considerations 37

38 Your reputation With your clients With other practitioners With your employees Your risk tolerance Your personal ethics Things to Consider 38

39 A Good Ethical Rule of Thumb Do what s right and don t let anyone take away your good name! 39

40 When in Doubt Consult a trusted friend! 40

41 What Does This Mean in Real Life? 41

42 Scenario #1: Sneakers 42

43 Scenario #2: Twilight 43

44 Scenario #3: Three Bulletin Boards Outside BenefitsLink 44

45 Scenario #4: Ferris Bueller s Day Off 45

46 Scenario #5: Doogie Howser 46

47 Scenario #6: Young Sheldon 47

48 Questions? 48

49 Contact Information ILENE H. FERENCZY Ferenczy Benefits Law Center 2635 Century Pkwy., Suite 200 Atlanta, GA (678) (404) (F) Follow us on 49

50 Thank You to Our Sponsors!